With Friends Like These: Florida Rejects Judge-Lawyer Facebook Friendship As Basis To Disqualify

The Florida Supreme Court has resolved a district court of appeal split on the disqualification implications of a lawyer-judge Facebook friendship 

In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.” This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), which held that the existence of a Facebook “friendship” was not a sufficient basis for disqualification and which expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We hold that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.

Chief Justice Canady authored the majority opinion

We now come to the crux of the matter: what is the nature of Facebook “friendship?” “The word ‘friend’ on Facebook is a term of art.” Chace, 170 So. 3d at 803. In its most basic sense, a Facebook “friend” is a person digitally connected to another person by virtue of their Facebook “friendship.” See, e.g., Power Ventures, 844 F.3d at 1063; Ehling, 961 F. Supp. 2d at 662.

A Facebook “friend” may or may not be a “friend” in the traditional sense of the word. But Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger.”

Bottom line

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.

LABARGA, J., concurring.

I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts. As explained by the majority, “friendship” on Facebook, without more, does not create a legally sufficient basis for disqualification. Rather, the unique facts and circumstances of each case, in addition to the base fact of “friendship,” are what will determine whether disqualification is required.

Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary “is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” Dissenting op. at 24. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook “friendships” fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems. 

Justice Pariente, J., dissented joined by two colleagues.

She quoted the 2012 lower court decision in Domville

Judges do not have the unfettered social freedom of teenagers. Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.

And “wholeheartedly agree[s]”

While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics…

The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. [cites omitted]  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The bottom line

The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal’s decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), and approve the Fourth District’s decision in Domville.

Accordingly, I dissent.

(Mike Frisch)